JINHUI CORPORATION PTY LTD (Migration)

[2024] AATA 2873

JINHUI CORPORATION PTY LTD (Migration) [2024] AATA 2873 (16 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  JINHUI CORPORATION PTY LTD

VISA APPLICANT:  Mrs Siyue Dao

REPRESENTATIVE:  Mr Harry Cao

CASE NUMBER:  2402620

HOME AFFAIRS REFERENCE(S):          BCC2019/93334

MEMBER:Karen McNamara

DATE:16 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 482 visa:

·cl 482.312 of Schedule 2 to the Regulations.

Statement made on 16 July 2024 at 2:11pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – secondary applicant – primary applicant’s visa application remitted for reconsideration – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 482.312

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 April 2021, to refuse to grant Mrs Siyue Dao (the visa applicant) a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 16 January 2020 as a member of the family unit of Mr Yucheng Zhong (the primary applicant). At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the applicant is a secondary applicant to the application submitted on 16 January 2020 by Mr Yucheng Zhong.

3. Relevant to this matter, the delegate refused to grant the visa on the basis that the visa applicant could not be granted a Subclass 482 visa, as she did not meet the secondary visa criterion (cl.482.312) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 457 visa or a Subclass 482 visa.

4. On 10 February 2024, the Tribunal received a review application from the applicant’s nominating Australian sponsor, Jinhui Corporation Pty Ltd (the review applicant). The Tribunal notes that the visa applicant’s nominating Australian sponsor has standing to apply for review of the Subclass 482 visa refusal, as at the time that the application was lodged, the visa applicant was outside of Australia. The application was accompanied by a copy of the delegate’s decision and a submission by the representative dated 10 February 2024. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

5. In accordance with s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it. It was therefore unnecessary for the applicant to appear before the Tribunal to give evidence in relation to the decision under review. The Tribunal has therefore resolved this matter on the papers.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicant meets the requirements of clause 482.312 of Schedule 2 to the Regulations.

8. Clause 482.312 requires that the applicant is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa.

9. On 16 January 2020, the visa applicant submitted a combined application on the basis of being a member of the family unit of the primary applicant, as the spouse of Mr Yucheng Zhong.

10. On 16 February 2024 (differently constituted) the Tribunal remitted the application by the primary applicant (Mr Yucheng Zhong) for reconsideration, with the direction that the primary applicant met cl 482.212 of Schedule 2 to the Regulations. The review applicant was not subject to that review due to a jurisdictional issue which has now been resolved.

11. Department records confirm that Mr Yucheng Zhong was granted a Temporary Skill Shortage (Subclass 482) visa on 12 June 2024 to 12 June 2026.

12. As the primary applicant now holds the requisite visa, the Tribunal finds that the review applicant is therefore a member of the family unit of a person who is the holder of a Subclass 482 (Temporary Skill Shortage) visa. Consequently, the Tribunal finds the visa applicant satisfies cl 482.312(1) and accordingly meets cl 482.312.

13. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

14. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 482 visa:

    ·cl 482.312 of Schedule 2 to the Regulations.

    Karen McNamara
    Member